USA PATRIOT ACT
Backgound
Checks for CDL HazMat Endorsements
fInterim Final Rule
The rule establishes
who may hold a hazmat endorsement to their commercial drivers license (CDL)
6 Disqualifications:
-
aliens (unless
a lawful permanent resident);
-
individuals
who have renounced their U.S. citizenship ;
-
considered to
pose a security threat based on database review;
-
adjudicated
mentally defective or committed to an institution;
-
wanted or
under indictment for certain felonies;
-
convicted in
civilian or military court for certain felonies;
Felonies: Long list of disqualifying felonies:
- Financial assistance to terrorists, and general
acts of terrorism
- Immigration violations
- Crimes involving violent acts against another for
personal reasons (e.g., robbery, kidnapping and murder)
- Improper shipment of a hazardous material,
- Crimes involving a severe transportation security
incident.
- Catch all -- TSA may consider other criminal
offenses and information not listed in the rule.
Felony Look Back Limitations:
- Conviction within the preceding seven years, or o
Incarceration within the preceding five years, of a listed criminal offense,
they are disqualified.
- Crimes such as terrorism, espionage, sedition,
treason, arson, improper transportation of a hazardous material, unlawful
possession of an explosive, and crimes involving severe transportation
security incidents are not subject to the five and seven year limits.
The background check
requirements will be implemented in three phases:
Phase 1 – Self Implementing
Disqualifications (120 days):
- After September 2, 2003, drivers who fall within
one of the listed disqualification classes cannot legally transport
hazardous materials.
- These individuals must surrender their hazmat
endorsements to the issuing state or obtain a waiver from TSA.
- There is no provision in the rule that ensures
motor carriers will be informed that a driver has been disqualified as a
security threat.
Phase 2 – Name Based Background Checks
(Immediate):
- TSA will be conducting security threat
assessments on everyone that currently holds a hazmat endorsement.
- Based on the name and biographical information
contained in Commercial Drivers License Information System (CDLIS).
-
In certain
rare instances TSA may issue an immediate revocation of the hazardous
materials endorsement.
-
If the name
search discloses a disqualification, then TSA will issue an Initial
Notification of Threat Assessment
to the individual.
-
Individual has
15 days to appeal/correct the information upon which TSA based its
determination.
-
If the
individual is unable to correct the initial determination, TSA will issue a
Final Notification of Threat Assessment to the individual and the licensing
state.
-
Upon receipt
of a final determination, the state will revoke the individual’s hazmat
endorsement.
-
TSA will NOT notify the motor carrier employing the individual.
Phase 3 -- Fingerprint Based Background
Checks (180 days):
- After November 3, 2003, each hazmat endorsed
driver must submit fingerprints in a form and manner specified by TSA when
applying to a state to issue, renew, or transfer a hazmat endorsement.
- TSA has not yet determined how this will be
implemented;
- At some future date, TSA will provide guidance on
where individuals will report to submit fingerprints.
- The state must notify each hazmat endorsement
holder that they will be subject to a background check at least 180 days
prior to the expiration of the endorsement and that the individual must
initiate the security assessment process no later than 90 days before the
endorsement expires.
- Upon completion of the background check, TSA will
provide notice of its initial threat determination to the individual with an
opportunity for that person to appeal/correct facts underlying the
determination. Thereafter, a final determination will be provided to both
the individual and the licensing state.
- Under this phase of the rule, the state may not
issue, renew or transfer a hazmat endorsement unless it first receives a Notification
of No Security Threat from TSA.
- The TSA rule provides that the individual or
his/her employer will be responsible for paying a fee that will be collected
when the fingerprints are captured.
- The rule does not establish the specific fee and
notes that there are fees associated with accessing pertinent databases over
which TSA has no control.
- TSA used a $50 cost estimate for purposes
of conducting its regulatory impact analysis.
- Renewals vs. New Endorsements: Until April 29, 2004, a state may extend the
expiration of a hazardous materials endorsement until TSA informs the state
of its final determination. New endorsements, however, may not be issued
until the TSA assessment is completed.
Waiver Process:
- Any individual that is disqualified under the
rule may request a waiver from TSA based upon their particular circumstances
- Waivers are not available for Aliens or
individuals that appear on one of the government watch lists.
- Waivers will be based upon:
-
the circumstances of any disqualifying act;
-
restitution made by the individual;
-
any federal or state mitigation remedies; and
-
other factors that indicate the individual does not pose a security threat.
GAP -- Canadian and Mexican Drivers:
- TSA is aware that the rule does not address
Canadian and Mexican drivers transporting hazardous materials in the United
States.
- TSA will work with the U.S. Department of State
to negotiate reciprocity agreements addressing this gap.
This summary was produced by
the American Trucking Associations, Inc., Alexandria, VA and is reproduced with
their permission.
Wisconsin Motor Carriers
Association
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